- In February 2021, the U.S. House of Representatives
subcommittee on Economic and Consumer Policy released a report on the levels of heavy metals found
in baby foods and the respective manufacturers. The report findings
described "significant levels of toxic heavy metals"
based on internal documents and test results submitted by baby food
companies. Lawsuits quickly followed, including many actions
against Gerber Products Co., that allege Gerber falsely and
deceptively failed to disclose the presence of unsafe levels of
heavy metals in their baby foods.
- Gerber argues in a recent motion to dismiss (see filing; Law 360 subscription required) that
the primary jurisdiction doctrine should control. For background,
the primary jurisdiction doctrine is a judicial doctrine used when
courts and an agency have concurrent jurisdiction, but the court
favors administrative discretion and expertise in deciding the
issue. In this case, Gerber argues that the Food and Drug
Administration (FDA) is in a better position to decide
"acceptable levels of heavy metals in baby foods" because
of the need for expertise in issues of infant nutrition.
- Gerber further alleges that Plaintiff's claims are
preempted by the Food, Drug, and Cosmetic Act (FDCA). Gerber argues
that Plaintiff's demand for mandatory disclosures on packaging
is preempted by FDA because it is the Agency's role to
establish national policy on food safety and labeling. Finally,
Gerber says the Plaintiffs fail to plead deception, pointing to a
lack of misleading statements on their packaging and no legal
requirement to disclose heavy metals on a product label.
- Keller and Heckman will continue to monitor and report on this litigation and any responsive regulatory actions or developments.
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